Prosecutorial Misconduct Remains Rampant And Continues Unchecked

Report details prosecutorial misconduct, pushes for transparency

The Northern California Innocence Project finds 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. The group, based at the Santa Clara University School of Law, is advocating more transparency in how misconduct is addressed.

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California courts last year found that Los Angeles County prosecutors withheld evidence, intentionally misled jurors or committed other types of misconduct in 31 criminal cases, according to an Innocence Project report released last week. The decisions involved convictions dating back as far as 1984 and were among 102 California cases in which the group found that courts identified prosecutorial misconduct.

In 26 of the cases - nine in Los Angeles County - the courts cited the misconduct in decisions to order a new trial, set aside a sentence or bar evidence, according to the Northern California Innocence Project, which is based at the Santa Clara University School of Law. Los Angeles County accounts for about a quarter of the state's felony criminal filings and one-third of felony trials.

The study is part of an effort by the Innocence Project to highlight the scope and effects of prosecutorial misconduct, which the group says has led to wrongful convictions and costly re-trials. In a study released in October, the Innocence Project listed more than 700 California cases in which state and federal courts identified prosecutorial misconduct in rulings from 1997 to 2009. The Innocence Project has called for greater transparency in how local and state agencies respond to such cases and has urged the State Bar of California, which investigates claims of attorney wrongdoing, to examine all prosecutorial misconduct findings.

Courts are not required to report cases to the state bar if they decide the misconduct was harmless. "What we want is scrutiny," said Maurice Possley, one of the authors of both reports and a visiting fellow at the Innocence Project. "If they're not getting the cases or looking at the cases, that sends a message that this sort of behavior is tolerated or acceptable."

Some prosecutors have accused the Innocence Project of exaggerating the problem. Legal experts - and courts - often disagree on what rises to the level of prosecutorial misconduct. And courts often do not distinguish between intentional and unintentional misconduct. Appellate courts reject most claims of prosecutorial wrongdoing. The Innocence Project's October study showed that courts that identified prosecutorial misconduct usually determined that the actions did not undermine a defendant's right to a fair trial. Nevertheless, the state bar has taken note.

After reviewing last year's study, agency officials discovered that some of the cases cited by the Innocence Project had never been reported to the bar. Attorneys and courts are legally required to notify the state bar if a conviction is reversed or modified as a result of misconduct. "We need to improve the reporting of misconduct ... by both lawyers and courts," said Jim Towery, the state bar's chief trial counsel. "It is beneficial that the Northern California Innocence Project is focusing public attention on a very significant issue."

Towery (the state bar's chief trial counsel) said his agency plans to investigate or reinvestigate "a modest number" of cases cited in the study to determine whether prosecutors should face discipline. He declined to give an exact number or to name the cases, saying that the bar's investigations are confidential. The state bar, he said, is also extending efforts to educate prosecutors on how to avoid misconduct and what their responsibilities are when it does occur. He said some district attorney's offices, including Los Angeles County's, have invited bar officials to provide prosecutors with additional training.

One of the cases cited in last week's report was that of Eric Hester, who was convicted of rape and sodomy in 2009. A state court of appeals reversed his conviction in September, concluding that L.A. County Deputy Dist. Atty. Robert Hight made numerous improper arguments during the trial. The court faulted Hight for arguing that Hester had a key to enter the victim's apartment when no such evidence was presented. In discussing the key issue, the appellate court found that "there is every reason to believe that Hight made these arguments with the intention of misleading the jury." Hight did not respond to calls seeking comment.

Dist. Atty. Steve Cooley said in a recent letter to county supervisors that he reviewed the case and found "no indication that the deputy district attorney acted in bad faith or with actual malice." The letter said the state bar has launched an inquiry into the allegation, and Cooley asked the board to approve legal representation for the prosecutor. The board has yet to vote on it.

District attorney's spokeswoman Sandi Gibbons said her office reviews all findings of prosecutorial misconduct and "offers extensive and ongoing ethics training" for prosecutors. She declined to comment on the Hester case or the other court findings, saying that they involve personnel matters. She said Hester is being retried.

In its report, the Innocence Project said it had identified 107 prosecutors with more than one finding of misconduct. Among those named in the study was retired L.A. County Deputy Dist. Atty. Sterling Norris. Last year, a panel of the U.S. 9th Circuit Court of Appeals overturned one of Norris' cases, the 1984 murder conviction of Bobby Joe Maxwell, who was called the "skid row stabber." The panel concluded that an infamous jail house informant falsely testified against Maxwell and that the prosecution failed to turn over multiple pieces of critical evidence that could have been used to undermine the witness' credibility.

The Innocence Project noted another murder case in which a federal judge concluded in 2006 that Norris failed to disclose important evidence to the defense during a 1992 trial. Norris denied failing to turn over evidence in either case and said it was unfair for the federal appeals panel to accuse him of misconduct 26 years later, after the state Supreme Court had rejected previous attempts to overturn Maxwell's conviction. "That opinion is a joke," Norris said. Maxwell's attorney has filed a complaint with the state bar about Norris' role in the case.